Opinion
E072432
08-11-2020
THE PEOPLE, Plaintiff and Respondent, v. MING LIANG LU, Defendant and Appellant.
Krista R. Hemming for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. FVI18003090) OPINION APPEAL from the Superior Court of San Bernardino County. Michael A. Camber, Judge. Affirmed. Krista R. Hemming for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Daniel Rogers and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
I. INTRODUCTION
Ming Liang Lu (defendant) was convicted by a jury of attempted murder (count 1, Pen. Code, §§ 664 & 187, subd. (a)) and assault with a firearm (count 2, § 245, subd. (a)(2).) The jury also found true special allegations that defendant inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a firearm, intentionally discharged it, and proximately caused great bodily harm in doing so in the commission of count 1. (§ 12022.53, subds. (b), (c) & (d).) Defendant appeals arguing there is insufficient evidence to support his conviction and that he was prejudiced by ineffective assistance of counsel. We conclude that sufficient evidence in the record supports defendant's conviction and that defendant has not established he was prejudiced by any alleged ineffective assistance of counsel. We affirm.
All future statutory references are to the Penal Code unless otherwise stated.
II. FACTS & PROCEDURAL HISTORY
A. Facts & Charges
On October 21, 2018, deputies from the San Bernardino County Sheriff's Department responded to a report that a man had been shot. The victim, J.C., was discovered with a gunshot wound to his shoulder and reported he had been shot by a man outside his home. Subsequent investigation led deputies to defendant's residence on a farm property where they discovered various shell casings. Ballistics testing revealed the shell casings discovered on defendant's property matched those found near the scene of the shooting.
Defendant was charged in an information with attempted murder (count 1, §§ 664 & 187, subd. (a)) and assault with a firearm (count 2, § 245, subd. (a)(2)). The information further alleged defendant inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a firearm, intentionally discharged it, and proximately caused great bodily harm in doing so in the commission of count 1. (§ 12022.53, subds. (b), (c) & (d).)
B. Prosecution's Evidence at Trial
1. Testimony of J.C.
J.C. was called to testify and identified defendant as someone who had lived on a farm where J.C. worked. On the night of October 21, 2018, J.C. was sitting in his car outside of his trailer home drinking. He was interrupted when a gray van drove up, a Chinese man got out, started yelling at him, pulled out a handgun, and shot twice into the ground. When asked, J.C. specifically identified defendant as the man who confronted him. Defendant continued to yell for about 15 minutes, but J.C. could not understand what defendant was saying since J.C. did not speak Chinese or English. As defendant was yelling, he also physically approached J.C. Eventually, defendant pointed the gun in J.C.'s face at close range, shot the gun once, and turned around and left. J.C. sustained a gunshot wound to his right shoulder as a result. He went into his trailer and called a friend for help. His friend told him to drive from his trailer out to the main road and someone would be sent to help him. After driving slowly towards the street for a few minutes, J.C. stopped outside of a neighbor's house, where law enforcement officers eventually located him and he was transported to the hospital.
J.C. testified that about a week after the incident, he located two shell casings when cleaning out the inside of his car, and a third shell casing outside the car close to his trailer. He kept the casings in a small bag and eventually gave them to the civil attorney he hired to help him obtain compensation for his injuries. J.C. did not give the casings to police because he had been fired from his job on the farm, had no means of transportation, and no money for gas.
2. Testimony of Sheriff's Deputy
A deputy for the San Bernardino County Sheriff's Department testified that on October 21, 2018, he and his partner responded to a report that a man had been shot. Upon arrival at the scene, officers encountered J.C., another gentleman, and two women. J.C. had a gunshot wound in his right shoulder. With one of the women acting as an interpreter, J.C. told the deputies he had been at his home when he was shot by a man of Asian descent, approximately 46 years old with light hair. The deputy conducted a search of J.C.'s car for approximately five minutes but did not find any shell casings.
The specific term used by the witness was "Chino." --------
After J.C. was taken away by ambulance, the women informed the deputies that they believed they knew the individual J.C. had been referring to and directed the deputies to another farm residence. The following day, the deputies went back to the residence. When they arrived at the residence, defendant came to the gate and invited the deputies onto the property. They found two shell casings on the ground outside defendant's residence, four shell casings around a nearby shed, and one on the step of the entrance to defendant's residence. They then conducted a patdown search of defendant and recovered eight unfired nine-millimeter cartridges in his pockets.
3. Testimony of J.C.'s Civil Attorney
J.C.'s civil attorney testified that J.C. is a current client of his. He first met J.C. in person on November 9, 2018, at which time J.C. gave him a bag containing three shell casings. The attorney took possession of the shell casings and kept them in his safe. He contacted the investigating detective on J.C.'s case and they agreed to meet at some point so the detective could take custody of the shell casings.
4. Testimony of Criminologist
A firearms examiner for the San Bernardino County Sheriff's Department testified she examined and compared the shell casings recovered from defendant's residence with those delivered to law enforcement by J.C.'s attorney. She determined that all the shells were fired from the same firearm.
C. Verdict and Sentencing
The jury found defendant guilty of attempted murder (count 1, §§ 664 & 187, subd. (a)) and assault with a firearm (count 2, § 245, subd. (a)(2)). Additionally, the jury found true the allegations that defendant inflicted great bodily injury (§ 12022.7, subd. (a)) and personally used a firearm, intentionally discharged it, and proximately caused great bodily harm in doing so in the commission of count 1. (§ 12022.53, subds. (b), (c) & (d)). Defendant was sentenced to a total of 22 years in state prison.
III. DISCUSSION
A. Substantial Evidence Supports the Verdict
Defendant contends the evidence is insufficient to support his convictions because the testimony of J.C. regarding the discovery of shell casings was inconsistent or improbable. We disagree.
"In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.]" (People v. Young (2005) 34 Cal.4th 1149, 1181.) "Moreover, the testimony of a single witness is sufficient to uphold a judgment even if it is contradicted by other evidence, inconsistent or false as to other portions. [Citation.]" (People v. Leigh (1985) 168 Cal.App.3d 217, 221.) This remains true "[e]ven when there is a significant amount of countervailing evidence." (People v. Barnwell (2007) 41 Cal.4th 1038, 1052.)
Here, defendant argues the evidence is insufficient to support his conviction because J.C.'s testimony regarding the discovery of shell casings at the scene of the shooting is inherently improbable. Even if we were to accept that this portion of J.C.'s testimony was inherently improbable, this would not be grounds for reversal. J.C. unequivocally identified defendant as the man who shot him during his testimony before the jury. This testimony clearly constitutes substantial evidence upon which the jury may rely to conclude defendant was guilty of the crimes charged. This is particularly true where J.C. was familiar with the defendant and identified defendant as someone who had lived on a farm where J.C. worked. Such testimony would be sufficient even if other aspects of J.C.'s testimony—such as how he located shell casings near the scene of the crime—were inconsistent or false. Since substantial evidence in the record supports the conviction, we decline to reverse on this ground.
B. Defendant Has Not Shown Prejudicial Ineffective Assistance of Counsel
Defendant also argues his conviction should be reversed because his trial counsel was ineffective. Specifically, defendant argues his trial counsel failed to pursue a continuance to conduct further discovery; failed to retain an expert to conduct an independent examination of the bullet casings found at his residence and the crime scene; and failed to conduct a more robust cross-examination of prosecution witnesses. We conclude plaintiff has not shown prejudice warranting reversal on any of these grounds.
"To demonstrate ineffective assistance of counsel, a defendant must show that counsel's action was, objectively considered, both deficient under prevailing professional norms and prejudicial. [Citation.] To establish prejudice, a defendant must show a reasonable probability that, but for counsel's failings, the result of the proceeding would have been more favorable to the defendant. [Citation.]" (People v. Hinton (2006) 37 Cal.4th 839, 876.) "Further, 'a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies . . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed.' [Citation.]" (People v. Carrasco (2014) 59 Cal.4th 924, 982 (Carrasco).)
Here, defendant argues his defense counsel was ineffective for failing to request a continuance to conduct further examination of shell casings linking defendant to the scene of the crime, but does not suggest what such an examination might have revealed. Likewise, defendant argues trial counsel was ineffective for failing to retain an expert to rebut opinions offered by the prosecution's expert regarding ballistics testing, but does not suggest what rebuttal opinions might have been offered by any such hypothetical expert. Thus, even if we were to assume such inaction by counsel amounts to deficient performance under prevailing norms, plaintiff has not established prejudice as a result.
As our Supreme Court has explained, the alleged failure to conduct further expert discovery or call defense expert witnesses does not establish prejudicial ineffective assistance of counsel where defendant does not show that additional investigation or testimony would have provided exculpatory evidence. (See People v. Bolin (1998) 18 Cal.4th 297, 333-334 [no prejudice shown from failure to call defense ballistics or blood spatter evidence where record does not establish such experts would have provided exculpatory evidence if called]; Carrasco, supra, 59 Cal.4th at pp. 988-989 [no prejudice from failure to obtain fingerprint expert where record does not indicate what such expert might have concluded].) On appeal, defendant has not suggested what additional investigation, examination, or expert testimony would have revealed, let alone suggested that such efforts could have produced exculpatory evidence at trial. Absent such a showing, defendant has not met his burden to establish prejudice warranting reversal.
With respect to defendant's claim his trial counsel failed to sufficiently cross-examine J.C. regarding J.C.'s discovery of shell casings and chain of custody issues, we cannot conclude on this record that such inaction constituted a failure to adhere to prevailing norms. "Such matters as whether objections should be made and the manner of cross-examination are within counsel's discretion and rarely implicate ineffective assistance of counsel. [Citation.]" (People v. McDermott (2002) 28 Cal.4th 946, 993.) "In the usual case, where counsel's trial tactics or strategic reasons for challenged decisions do not appear on the record, we will not find ineffective assistance of counsel on appeal unless there could be no conceivable reason for counsel's acts or omissions. [Citations.]" (People v. Jones (2003) 29 Cal.4th 1229, 1254.) Here, the record is silent regarding the reasoning behind trial counsel's cross-examination strategy. Nor can we conclude in a vacuum that there was no conceivable reason for the decision to avoid or limit cross-examination on any specific topic. (See People v. Hart (1999) 20 Cal.4th 546, 612, fn. 18 [failure to challenge certain inconsistencies in surviving victim's testimony "clearly could have rested upon sound trial tactics"].)
The manner and method of cross-examination is a matter within the discretion of trial counsel and clearly influenced by trial counsel's tactical decisions. Absent anything in the record to suggest otherwise, we decline to interpret trial counsel's decision to limit cross-examination on certain topics as rising to the level of ineffective assistance of counsel. Nor has defendant met his burden to establish prejudice by showing how the outcome of the proceeding would have been more favorable had his counsel adopted a more aggressive cross-examination strategy.
IV. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: RAMIREZ
P. J. RAPHAEL
J.